What happens when someone owed money dies before it is paid – can the executor of their will take action to recover the money on behalf of the estate?
The role of the executor
Where the deceased has made a will, they appoint one or more people to act as their executor, also known as a Personal Representative (PR). The PR, normally with the support of a solicitor, settles all matters surrounding the estate, pays inheritance tax and arranges for distribution of the estate to the beneficiaries.
As part of this role, the PR will seek to ensure that any money owed to the estate is recovered, as well as settling any claims against the estate.
If there is no will, then the court will have to appoint a PR to wind up the estate under a Grant of Administration. This takes place after the deceased’s death and no one can act on the estate’s behalf until that point.
A claim has been made and judgment awarded
In this case, the PR can commence enforcement action on behalf of the estate if payment has not been made. This includes the option to transfer up the judgment to the High Court for enforcement by a High Court Enforcement Officer (HCEO), where enforcement is carried out under a writ of control in the same way as all other HCEO enforcement.
Where no claim has been started
The will gives the PR the legal right to bring a claim on behalf of the estate, so, if the deceased was owed money, the PR can start a claim in the County or High Court, as appropriate, to obtain a judgment.
Assuming the judgment is awarded, the PR will then take enforcement action if necessary, including the transfer up to an HCEO for enforcement under a writ of control.
Death of the judgment debtor
It is also possible to enforce a writ against a deceased judgment debtor. You can read more about this in another article - Writ enforcement where the judgment debtor is deceased.
It is worth bearing in mind that the executor of the judgment debtor’s estate can be held financially responsible for any loss caused by failing to carry out their responsibilities, including the responsibility to pay the debts and liabilities of the deceased and to settle any claims against the estate.
If you would like to read more about this subject, it is covered in the Civil Procedure Rules Part 19.8.
David is an authorised High Court Enforcement Officer and our Director of Corporate Governance